In this latest podcast, our employment law experts explore how forthcoming legislative changes, recent case law and European developments could reshape whistleblowing employment policies in UK workplaces. We look at the impact of the addition of sexual harassment as a new category of wrongdoing for the purpose of whistleblowing disclosures, the tactical implications for claims, and what tribunals are signalling in the current case law.
Is adding sexual harassment as a specific whistleblowing wrongdoing necessary?
The Employment Rights Act continues to promote the strong focus on the employer obligation to take steps to prevent sexual harassment. Going forwards we are likely to see employees raising sexual harassment claims not only as Equality Act claims but also as part of automatically unfair dismissal and detriment claims within whistleblowing legislation. Although it is possible now to bring disclosures about sexual harassment into existing categories of wrongdoings the existence of a standalone sexual harassment wrongdoing will raise awareness amongst workers of their rights and encourage reporting. This will require employers to revisit processes relating to disclosures of sexual harassment and ensure whistleblowing policies make it clear that sexual harassment is a specific whistleblowing wrongdoing. The alternative statutory routes may become more common. The door to interim relief applications available in whistleblowing claims is opened a little wider by the sexual harassment addition creating a powerful remedy for employees as well as significant leverage in negotiations.
How does interim relief actually work and why is it so rarely used?
Interim relief in whistleblowing claims is powerful but uncommon. Most interim relief applications are typically backed by trade unions and many individuals are not aware of the relief until after the seven-day application deadline post-dismissal has passed. However claimants who do succeed with interim relief will obtain the tribunal’s preliminary view that the substantive claim has strong prospects, which often prompts employers to consider settlement.
Do you need to be the victim to gain whistleblowing protection and what disqualifies a disclosure?
A whistleblowing disclosure does not require the discloser to be the targeted recipient of the harassment or other wrongdoing. The core whistleblowing tests remain namely, whether the worker disclosed information that tends to show past, present or future wrongdoing; whether the worker had a reasonable belief in that wrongdoing; and whether they had a reasonable belief that the disclosure was in the public interest. The “public interest” element has been refined over the years by case law. In the Court of Appeal case of Chesterton v Nurmohamed, a pay grievance brought by the claimant relating to his own employment contract, but affecting a wider group of managers, satisfied the public interest test even though it did not concern those outside of the company. By contrast, a purely private contractual dispute as was seen in the case of Parsons v Airplus International Limited, is likely to fall short of satisfying the public interest test. With sexual harassment added to the statutory whistleblowing wrongdoings, employers may find it difficult to argue that such disclosures are not in the public interest, especially given expectations and accountability put onto employers in preventing sexual harassment in the workplace
How do EU Directive protections compare and did UK employers dodge a bullet?
The EU Whistleblowing Directive materially expands protection. It obliges employers to investigate whistleblowing complaints and to implement specific reporting channels. The Employment Rights Bill initially looked set to move in that direction, but proposals to hardwire those obligations were pared back. For multinationals, the Directive still bites: group-wide central hotlines are not sufficient alone, and separate entity-level reporting channels are required, albeit with pragmatic allowance for a central function alongside local options. The Directive also protects a wider group, including self-employed individuals, shareholders, volunteers, facilitators and even associates who face retaliation. UK-only employers may feel they have sidestepped additional burdens, but cross-border structures will need to reconcile divergent regimes and ensure entity-level compliance in the EU.
What are tribunals signalling in recent cases?
In the case of Nicol v World Travel & Tourism Council, the EAT held an automatic unfair dismissal claim failed because the decision-maker lacked knowledge of the substance of the disclosure; merely being aware “a concern” was raised was insufficient to establish causation under section 103A ERA. The decision is employer-friendly and places emphasis on the decision-maker’s knowledge of the content, not just its existence. That said, it invites careful case-by-case scrutiny of what counts as “sufficient” knowledge and may encourage workers to make disclosures directly to those with decision-making power.
In Chase v Northern Housing Consortium Ltd, the EAT confirmed disclosures made to an external investigator appointed by the employer can be protected. It would be artificial to require express policy language authorising disclosures to the investigator; appointment itself implies authority to receive both the details of earlier allegations and any further disclosures arising in the process. Practically, terms of reference should anticipate additional disclosures, and investigators should promptly relay them to the employer.
Will we see more whistleblowing disclosures or fewer?
The reduced 6 month period to claim unfair dismissal rights may reduce the need to frame disputes as whistleblowing, but the addition of sexual harassment as a standalone wrongdoing may create a temporary spike in employment whistleblowing claims. Public awareness is growing and well-advised claimants will use whistleblowing tactically.
What should employers do to safeguard their business?
This is a timely moment to review whistleblowing, grievance and anti-harassment policies; to clarify escalation routes and the role of external investigators; and to ensure HR and managers understand the public interest test, decision-maker knowledge issues, and the possibility of tactical use of interim relief. For organisations spanning the EU, entity-level reporting channels and broader protected categories must be factored in. Ensuring that policy and practice align will position employers to handle a possible rise in sexual harassment-related whistleblowing with rigour and credibility.
For more information about any of the issues covered in this episode, or if you need further employment law advice, please get in touch with one of our employment solicitors today.
